At the end of February, negotiations for a UN treaty to counter cybercrime began. This is significant for many reasons.
Firstly, while there are several instruments that address cybercrime, this is not only the first time states are negotiating a binding UN instrument on cybercrime, but also the first time states are negotiating a binding instrument on any cyber issue.
Secondly, the convention has the potential of reducing impunity of cybercriminals by harmonizing national approaches to criminalization. Relatedly, the convention could play a crucial role in improving international cooperation by providing effective investigatory frameworks and facilitating cross-border data exchange.
Moreover, the convention could help build the capacity of countries with less experience in tackling cybercrime and provide the basis for technical assistance.
Challenges lie ahead
Despite such potential, the process of negotiation will not be straightforward. This became glaringly evident during the first of six rounds of negotiations, held between the 28th of February and the 11th of March, when several areas of divergence but also convergence emerged.
Over the course of the first ten days of negotiations, many delegations from developing countries expressed their urgent need for a practical legal tool that could help them tackle cybercrime. This issue causes significant harm to their societies and economies, which has only been exacerbated by the COVID-19 pandemic.
Many developing countries – including those represented by CARICOM – are optimistic about the role this convention could play in fighting cybercrime, bridging the digital divide, and harnessing the potential of ICTs.
But to get there, there are key points that states need to agree on. One of which is what is cybercrime and what should be included in the scope of the treaty?
Narrow scope of cybercrimes
Countries have varied objectives of what they want this treaty to achieve. Western countries, for example, want to see a convention which includes a narrow scope of crimes. ‘Pure cybercrimes’ are known as cyber-dependent crimes, which refers to crimes that cannot happen without the use of ICTs.
These are often ones where a computer or data is the target of the criminal activity, such as malware, denial of service attacks, ransomware, etc. and include crimes that do not predate the existence of ICTs. Cyber-dependent offences have definitions broadly recognized by all countries.
They also advocate for including certain cyber-enabled crimes. These are traditional crimes where ICTs were used as an instrument, rather than as a target of the offence. The concept of cyber-enabled crimes applies to a very broad range of offences given how ICTs have infiltrated almost every aspect of our lives. So the offences that they have argued to be included are the ones where the use of ICTs significantly increase the scope, speed, scale of the crime but also the anonymity of the perpetrator.
For these offences, two main examples are often given: online child sexual exploitation, and computer fraud. They call for strong human rights safeguards to be embedded throughout the treaty.
Expanded scope of cybercrimes
Other countries, such as India for example, have stated that a limited convention may create more problems than solutions as technology evolves. They call for an expanded scope in the convention which, in addition to the pure cybercrimes, would include a longer list of cyber-enabled crimes.
The lists of offences vary between countries but include offences such as the use of ICTs for terrorist reasons, the distribution of narcotic drugs, and arms trafficking, in addition to content-related offences such disinformation, coercion to suicide, hate speech, extremism and others.
This expanded scope entails risks. First, several of those suggested traditional crimes are addressed in other instruments. Including them in this convention risks not only duplication of efforts but contradiction with other treaties, as well as with national approaches to these issues.
Second, some of the suggested content offences, such as extremist content, are treated differently in national jurisdictions. While some content is considered a criminal offence in one jurisdiction, it might be subject to civil liability in other jurisdictions or entail no liability at all.
In its submission to the process, the UN Human Rights Office stated that a future convention should focus on core cybercrimes and should avoid including content offences. It highlighted how cybercrime laws have been used to impose overly broad restrictions on free expression by criminalizing various online content related to extremism, terrorism, public morals or hate speech. The OHCHR stressed the importance of a future international instrument on cybercrime not to be interpreted as justification for such steps.
The risk of no consensus
But it is very important to note that this debate on trying to define what should and should not be considered cybercrime is at least a decade old. This debate has happened in several contexts including at the UN, where an agreement on a single definition of cybercrime was not possible.
There is nothing to suggest that this might change in the context of this process. Ultimately, this means there is a risk of not achieving consensus, and not having a convention at the end of this rather short process. If this was to happen, the countries who will probably be most affected are the developing countries.
Most developed countries have systems, resources, expertise and capabilities in place which enable them to tackle cybercrime. Western countries, for example, have a long history of working on cybercrime issues nationally but also regionally and internationally. They are state parties to the Budapest Convention and have good cooperation mechanisms within regional bodies such as Europol.
However, the same cannot be said about developing countries. As some delegations have highlighted during the negotiations, often international cooperation on cybercrime does not fail due to lack of will but rather lack of capacity. And whilst some of these countries have also ratified the Budapest Convention, their resources and capabilities tend to be unsurprisingly significantly less than those of developed countries.
Whether or not a UN convention on cybercrime is needed is also an old debate. However, the process currently underway presents an opportunity for many delegations from the developing countries to have a tool that would facilitate international cooperation on cybercrime and help them tackle the challenge. But can this be achieved in this process?
A legal basis for gathering data
Despite the differences between countries on how to define cybercrime for the purpose of the treaty and what to include in the scope, most countries acknowledge that the convention should include criminal activities committed that are broadly recognized by the international community.
Some delegations have suggested that the convention could act as a legal basis for the gathering of electronic evidence without linking cooperation to the investigation of certain offences that the convention sets out.
As put in the Chinese submission to the UN process, ‘regarding other crimes committed by using ICTs, member states could prevent and combat relevant crimes, which are not listed in this convention, and carry out international cooperation in accordance with this convention, other international conventions and their respective domestic laws.’
This approach has been successfully used in the context of the United Nations Convention against Transnational Organized Crime (UNTOC) where the convention criminalized a specific set of core types of organized crime activity but included broad international cooperation provisions that can be applied to other types of serious crime committed.
Several states have argued for a similar approach to be followed in this process which would mean that defining the different types of criminal behaviour becomes less important as states will have a legal basis for gathering and exchanging data, irrespective of the criminal offences covered in the convention.